Achaogen
Achaogen Inc (Form: S-8, Received: 11/08/2017 16:32:13)

 

As filed with the Securities and Exchange Commission on November 8, 2017


Registration No. 333-          

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

ACHAOGEN, INC.

(Exact name of registrant as specified in its charter)

Delaware

(State or other jurisdiction of incorporation or organization)

68-0533693

(IRS Employer Identification No.)

1 Tower Place, Suite 300

South San Francisco, CA 94080

(Address of Principal Executive Offices) (Zip Code)

 

2014 Employment Commencement Incentive Plan

(Full title of the plan)

 

Kenneth J. Hillan, M.B., Ch.B.

Chief Executive Officer

Achaogen, Inc.

1 Tower Place, Suite 300

South San Francisco, CA 94080

(Name and address of agent for service)

(650) 800-3636

(Telephone number, including area code, of agent for service)

Copies to:

Mark V. Roeder, Esq.

Latham & Watkins LLP

140 Scott Drive

Menlo Park, CA 94025

(650) 328-4600

 

Gary Loeb, Esq.

General Counsel

Achaogen, Inc.

1 Tower Place, Suite 300

South San Francisco, CA 94080

(650) 800-3636

 

 


 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definition of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. 

Large Accelerated Filer ☐

Accelerated Filer ☒

Non-Accelerated Filer ☐ (Do not check if a smaller reporting company)

Smaller Reporting Company ☐

 

Emerging Growth Company ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

Title of Securities

To Be Registered

Amount

To Be

Registered (1)

Proposed

Maximum
Offering Price

Per Share (2)

Proposed

Maximum
Aggregate
Offering Price (2)

Amount of
Registration Fee

Common Stock, $0.001 par value per share

450,000 shares (3) 

$12.66

$5,697,000.00

$709.28

(1)

Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “ Securities Act ”), this registration statement shall also cover any additional shares of the Registrant’s common stock that become issuable under the 2014 Employment Commencement Incentive Plan (the “ Inducement Plan ”) by reason of any stock dividend, stock split, recapitalization or similar transaction effected without the Registrant’s receipt of consideration which would increase the number of outstanding shares of the Registrant’s common stock.

(2)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price for shares reserved for future issuance under the Inducement Plan are based on the average of the high and the low price of the Registrant’s common stock as reported on The NASDAQ Global Market on November 1, 2017.

(3)

Represents the additional shares of common stock available for future issuance under the Registrant’s Inducement Plan resulting from an amendment adopted by the Registrant’s Board of Directors as of September 13, 2017.

Proposed sale to take place as soon after the effective date of the

Registration Statement as awards under the plans are granted, exercised and/or vest.

 

 


 


 

REGISTRATION OF ADDITIONAL SECURITIES

Achaogen, Inc. (the “Company”) filed with the Securities and Exchange Commission Registration Statements on Form S-8 (File Nos. 333-202796, 333-210280, 333-216684) on March 16, 2015, March 18, 2016 and March 14, 2017 relating to shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), to be offered and sold under the Inducement Plan and the contents of the Registration Statements on Form S-8 (File Nos. 333-202796, 333-210280, 333-216684) are incorporated by reference in this Registration Statement. The Company is hereby registering an additional 450,000 shares of Common Stock issuable under the Inducement Plan, none of which have been issued as of the date of this Registration Statement.

Item 8.   Exhibits .

Reference is made under this Item 8 to the exhibit index included in this Registration Statement.

EXHIBIT INDEX

Exhibit
Number

 

Description of Document

 

Incorporated by Reference from

 

Provided
Herewith

 

Registrant’s
Form

 

File No.

 

Date Filed
with the
Commission

 

Exhibit
Number

 

 

4.1

Amended and Restated Certificate of Incorporation of Achaogen, Inc.

8-K

001-36323

03/17/2014

3.1

 

4.2

Amended and Restated Bylaws of Achaogen, Inc.

8-K

001-36323

03/17/2014

3.2

 

4.3

Form of Common Stock Certificate.

S-1/A

333-193559

3/10//2014

4.1

 

4.4

Warrant to purchase shares of common stock issued to Oxford Finance LLC on November 1, 2011.

S-1

333-193559

1/24/2014

4.4

 

4.6

Warrant to purchase shares of common stock issued to Oxford Finance LLC on April 30, 2012 (Term A Loan (2)) .

S-1

333-193559

1/24/2014

4.6

 

4.7

Warrant to purchase shares of common stock issued to Oxford Finance LLC on April 30, 2012 (Term B Loan).

S-1

333-193559

1/24/2014

4.7

 

4.8

Form of Warrant, issued pursuant to the Securities Purchase Agreement, dated June 1, 2016, by and among Achaogen, Inc. and the purchasers named therein.

S-3

333-212253

6/24/2016

4.3

 

5.1

Opinion of Latham & Watkins LLP.

 

 

 

 

X

23.1

Consent of Independent Registered Public Accounting Firm.

 

 

 

 

X

23.2

Consent of Latham & Watkins LLP (included in Exhibit 5.1).

 

 

 

 

X

24.1

Power of Attorney (included on signature page hereto).

 

 

 

 

X

99.1(A)

Achaogen, Inc. 2014 Employment Commencement Incentive Plan.

10-Q

001-36323

11/8/2017

10.1

 

99.1(B)

Form of Stock Option Grant Notice and Stock Option Agreement under the Achaogen, Inc. 2014 Employment Commencement Incentive Plan.

10-K

001-36323

3/16/2015

10.11(B)

 

99.1(C)

Form of Restricted Stock Unit Award Grant Notice and Restricted Stock Unit Award Agreement under the Achaogen, Inc. 2014 Employment Commencement Incentive Plan.

10-K

001-36323

3/15/2016

10.10(C)

 

 

 

 


 


 

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of South San Francisco, State of California, on this 8th day of November, 2017.

 

 

 

ACHAOGEN, INC.

 

 

By:  /s/ Kenneth J. Hillan

Name: Kenneth J. Hillan, M.B., Ch.B.

Title:  Chief Executive Officer

 

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Kenneth J. Hillan, Tobin Schilke and Gary Loeb, and each of them, as attorneys-in-fact, each with the power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature

Title

Date

 

 

 

/s/ Kenneth J. Hillan

Chief Executive Officer and Director

November 8, 2017

Kenneth J. Hillan, M.B., Ch.B.

(principal executive officer)

 

 

 

 

/s/ Tobin Schilke

Chief Financial Officer

November 8, 2017

Tobin Schilke

(principal financial and accounting officer)

 

 

 

 

/s/ Bryan E. Roberts

Chairman of the Board

November 8, 2017

Bryan E. Roberts, Ph.D.

 

 

 

 

 

/s/ Karen Bernstein

Director

November 8, 2017

Karen Bernstein, Ph.D.

 

 

 

 

 

/s/ John C. Doyle

Director

November 8, 2017

John C. Doyle

 

 

 

 

 

/s/ Michael Fischbach

Director

November 8, 2017

Michael Fischbach, Ph.D.

 

 

 


 

 

 

 

/s/ Halley Gilbert

Director

November 8, 2017

Halley Gilbert

 

 

 

 

 

/s/ Kent E. Lieginger

Director

November 8, 2017

Kent E. Lieginger, Pharm.D.

 

 

 

 

 

/s/ John W. Smither

Director

November 8, 2017

John W. Smither

 

 

 

 

 

/s/ Gregory Stea

Director

November 8, 2017

Gregory Stea

 

 

 

 

 

Exhibit 5.1

 

November 8, 2017

 

 

Achaogen, Inc.

1 Tower Place, Suite 300

South San Francisco, CA 94080

 

Re:  

Registration Statement on Form S-8; 450,000 shares of Common Stock, par value $0.001 per share

Ladies and Gentlemen:

We have acted as special counsel to Achaogen, Inc., a Delaware corporation (the “ Company ”), in connection with the registration by the Company of up to 450,000 shares of Common Stock of the Company, par value $0.001 per share (the “ Shares ”), issuable under the Company’s 2014 Employment Commencement Incentive Plan (the “ Inducement Plan ”). The Shares are included in a registration statement on Form S–8 under the Securities Act of 1933, as amended (the “ Act ”), filed with the Securities and Exchange Commission (the “ Commission ”) on November 8, 2017 (the “ Registration Statement ”).  This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the related prospectuses, other than as expressly stated herein with respect to the issuance of the Shares.

 


November 8, 2017

Page 2

As such counsel, we have examined such matters of fact and questions of l aw as we have considered appropriate for purposes of this letter.  With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matte rs.  We are opining herein as to the General Corporation Law of the State of Delaware, and we express no opinion with respect to any other laws.

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Inducement Plan, assuming in each case that the individual issuances, grants or awards under the Inducement Plan are duly authorized by all necessary corporate action of the Company and duly issued, granted or awarded and exercised in accordance with the requirements of law and the Inducement Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issuance and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable.  In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the General Corporation Law of the State of Delaware.

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act.  We consent to your filing this opinion as an exhibit to the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

 

Very truly yours,

 

 

 

/s/ Latham & Watkins LLP

 

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2014 Employment Commencement Incentive Plan of Achaogen, Inc. of our report dated March 14, 2017, with respect to the consolidated financial statements of Achaogen, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2016, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Redwood City, California

November 8, 2017